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Protecting rights and facilitating stable relationships among federal agencies, labor organizations, and employees while advancing an effective and efficient government through the administration of the Federal Service Labor-Management Relations Statute.

19 FLRA No. 38
U.S. ARMY MISSILE COMMAND
REDSTONE ARSENAL
Activity
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1858
Union
Case No. O-AR-936
DECISION
This matter is before the Authority on an exception to the award of
Arbitrator William D. Ferguson filed by the Agency under section 7122(a)
of the Federal Service Labor-Management Relations Statute and part 2425
of the Authority's Rules and Regulations.
A grievance was filed and submitted to arbitration essentially
challenging the reassignment of the grievant. According to the
Arbitrator's award, the grievant was one of two GS-6 secretaries in a
project office, and the dispute arose as the result of an attempt, which
was rejected by the Activity's personnel office, to noncompetitively
promote the other secretary to GS-7, but not the grievant. Thereafter,
the grievant was reassigned because of an anticipated reduction-in-force
and the promotion to GS-7 was announced competitively. The grievant was
one of the final three candidates for the promotion, but the other
secretary in the project office was selected for the competitive
promotion. The Arbitrator determined that the Activity had violated
provisions of the parties' collective bargaining agreement by failing to
inform the Union of the anticipated reduction-in-force that resulted in
the reassignment of the grievant. The Arbitrator further found that the
reassignment of the grievant violated the parties' agreement because the
reassignment was for the purpose of preventing her from being promoted.
Accordingly, the Arbitrator ruled that the grievant was entitled, on her
request, to be promoted the same as the other project office secretary
with backpay.
In its exception the Agency contends that the award of retroactive
promotion with backpay is contrary to the Back Pay Act, 5 U.S.C. 5596.
The Authority agrees.
The Authority has uniformly stated that the Back Pay Act requires not
only a determination that the aggrieved employee was affected by an
unwarranted personnel action, but also a determination that such
unwarranted action directly resulted in the withdrawal or reduction in
the pay, allowances, or differentials that the employee otherwise would
have earned or received. Thus, in order for an award of backpay by an
arbitrator to be authorized by the Act, the arbitrator must find that an
agency personnel action with respect to the grievant was unjustified or
unwarranted, that such unjustified or unwarranted personnel action
directly resulted in the withdrawal or reduction of the grievant's pay,
allowances, or differentials, and that but for such action, the grievant
otherwise would not have suffered such withdrawal or reduction of pay,
allowances, or differentials. E.g., American Federation of Government
Employees, Local 3553, AFL-CIO and Veterans Administration Medical
Center, New Orleans, Louisiana, 18 FLRA No. 65 (1985). In terms of this
case, the Arbitrator, as noted, determined that the reassignment of the
grievant violated the parties' collective bargaining agreement.
However, the Arbitrator did not expressly find that this unwarranted
action directly resulted in the failure of the grievant to be promoted,
especially the failure to be promoted "the same as" the other secretary
who was promoted competitively instead of the grievant. In this
respect, the Arbitrator expressly concluded that if the objective was to
merely promote the other secretary and not promote the grievant, this
could have been accomplished without having reassigned the grievant by
the competitive promotion procedures which in fact resulted in the
competitive promotion of the other secretary and not the grievant.
Thus, there is no finding that but for the unwarranted reassignment, the
grievant otherwise definitely would have been promoted. Accordingly,
the Authority concludes that the Arbitrator has not made the findings
necessary for an award of a retroactive promotion and backpay, and
consequently the award in this respect is deficient as contrary to the
Back Pay Act. Therefore, the award is modified to strike all provisions
for retroactive promotion and backpay. Issued, Washington, D.C., July
25, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY